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Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010 - page 4 / 12

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    • b.

      Need not be a sale. Transfer of title so as to create ownership of copy, e.g., by gift, sufficient, but must fully “dispose of” the copy, not, e.g., rent it. § 117(b)

  • 2.

    Limitation on CO’s exclusive right of distribution to the public. On first sale of copy, exclusive right of distribution is exhausted with respect to that copy.

  • a.

    CO benefit

    • i.

      Is paid for the copy

    • ii.

      Buyer’s or transferee’s obtaining value from the copy, by

reading it, does not interfere with CO’s further exploitation of copyright

  • b.

    Buyer’s benefit

    • i.

      Obtains full value from the work by reading it, without need to copy it

ii.

No restraint on buyer’s alienation of physical item or need for further negotiations before its transfer

  • iii.

    Able to obtain value by transferring copy.

    • (a)

      Permits more people to obtain value from work.

    • (b)

      To some extent, public good (nonrival) aspect of

work.

  • c.

    Goldstein on first sale doctrine:

    • i.

      Contemplates that in case of lease or license, negotiation costs will be minimized because of continuing legal relationship and relatively short duration of lessee’s or licensee’s ownership, whereas in case of transfer of full ownership, absence of ongoing relationship and indeterminacy of possession of the copy will disable further agreements about transfers. II Goldstein (3d ed.) § 7.5 at 7:123.

    • (a)

      Emphasis on short duration of license relationship is questionable

  • ii.

    Assumes that copyright owner will recoup the costs of an

authorized copy with its first sale. II Goldstein (3d ed.) §

    • 7.5

      at 7:124.

      • -

        4-

Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010

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